Interview with ACLU re: constitutional challenge to new FISA law

Jameel Jaffer, the Director of the ACLU National Security Project, explains why the new FISA law violates the 4th Amendment and is even broader than the President's illegal NSA program

Published July 10, 2008 10:10PM (EDT)

(Updated below - Update II - Update III - Update IV)

This afternoon, I spoke with Jameel Jaffer, the Director of the ACLU's National Security Project, regarding the two legal proceedings commenced today by the ACLU challenging the constitutionality of the new FISA law. The roughly 20-minute discussion can be heard here.

The ACLU filed one action in the FISA court, requesting that -- contrary to how the FISA court normally works -- all proceedings regarding the constitutionality of the FISA law be open to the public and transparent, and that the proceedings be adversarial (i.e., that the ACLU -- rather than just the Government -- can participate). The other action was filed in a federal court in the Southern District of New York, alleging that the provisions which vest vast new warrantless eavesdropping powers in the President are, for multiple reasons, violative of the Fourth Amendment of the U.S. Constitution. The ACLU's lawsuits do not challenge the constitutionality of the telecom immunity provisions of the new FISA law because those sections will be challenged by EFF and local/affiliate ACLU groups in separate actions. The legal documents filed today by the ACLU are here.

In the podcast, Jaffer details exactly what warrantless surveillance powers the new FISA bill vests in the President, along with the reasons they are so pernicious. He underscores the extraordinary fact that the surveillance program implemented by Congress yesterday does not merely authorize most of the President's so-called "Terrorist Surveillance Program" that gave rise to this scandal in the first place, but is actually much broader in scope even than that lawless program, because there is not even any requirement in the new FISA law that the "target" of the surveillance have any connection whatsoever to Terrorism, nor is there any requirement that the Government believe the "target" is an agent of a foreign power or terrorist organization, or even guilty of any wrongdoing at all. As Georgetown Law Professor Marty Lederman wrote today (emphasis his):

The new statute permits the NSA to intercept phone calls and e-mails between the U.S. and a foreign location, without making any showing to a court and without judicial oversight, whether or not the communication has anything to do with al Qaeda -- indeed, even if there is no evidence that the communication has anything to do with terrorism, or any threat to national security.

Those claiming that this new FISA law is just some sort of innocuous or mild extension of the Government's surveillance powers under the old FISA law should listen to Jaffer's extremely clear and detailed explanation of what this law really is, how invasive the powers it creates are, and why it tramples on core Constitutional protections. The podcast can be heard here.

* * * * *

On a related note: there's no question that yesterday was a horrendous day for people devoted to the preservations of basic Constitutional protections and the rule of law, but -- as I said in the prior post from today -- it is hardly the end of anything, but the beginning. Sen. Chris Dodd -- whose stalwart, relentless efforts to stop this law were nothing short of heroic, as those efforts often provoked substantial hostility among many of his colleagues -- sent around the following email today to his mailing list highlighting the positive aspects of the battle:

Yesterday was a sad day for the United States Senate.

It is my hope that the courts will undo the damage done to the Constitution.

But let us stand tall, knowing that by working together we were able to make wiretapping and retroactive immunity part of the national discourse these last number of months.

We came together – all of you, Senator Feingold, bloggers like Jane Hamsher and Glenn Greenwald, organizations like the EFF and ACLU, and untold hundreds of thousands of Americans who simply wanted to make sure that this one, last insult did not happen with ease.

I'm sorry we weren't successful.

I just hope I'm lucky enough to have you by my side in the next fight, whatever that may be.

Thanks for all you've done.

Chris Dodd

By all rights, given the standard array of bipartisan lobbyists, the establishment pundit class, the intelligence community, the White House and Congressional leaders all lined up behind it, this bill should have passed quietly and seamlessly back last December. That's normally how the Washington Establishment functions.

It really was a true spontaneous outburst of citizen activism that prevented that from happening. As a result, new coalitions formed. There will now be lawsuits challenging the constitutionality of this travesty of a law. The activism that arose over this bill did indeed -- as Sen. Dodd said -- force these issues into the public discourse, and will serve as a foundation, a launching pad, for far more potent and effective efforts against future assaults of this type from the political class on the rule of law and core Constitutional protections. It's important that the pervasive, justifiable anger over what happened yesterday be channeled not into defeatism, but into constructive resolve to create still more effective methods for battling against these erosions.

UPDATE: The most overlooked fact in the entire FISA debate -- the aspect of it that renders incoherent the case in favor of the new FISA law or even those who dismiss its significance -- is that virtually nobody knows what the spying program they're immunizing entailed and towards what ends it was used -- i.e., whether it was abused for improper purposes. Even those who acknowledge that the warrantless spying program was illegal like to assert that it was implemented for benign and proper counter-terrorism purposes (see Kevin Drum making that claim here) -- but they have absolutely no idea whether that is true. None. Zero. To assert that is simply to make assertions with no basis whatsoever.

There has been no Congressional investigation into the NSA program -- meaning an effort to compel the Bush administration to turn over to Congress information about who was subjected to the illegal, warrantless spying and towards what purposes. Back in March, 2006, even the Senate Intelligence Committee -- the core function of which is "to provide vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States" -- voted along party lines against conducting hearings into the NSA spying program.

The whole point of the Bush NSA warrantless spying program was to enable the administration to spy on people in secret -- i.e., without the judicial oversight the law required. Thus, the only people outside the Executive Branch who have any real knowledge at all of how these illegal spying powers were exercised are a small number of Senators on the Intelligence Committee who have been briefed by Bush officials, but they are barred by law from saying what they know. Nonetheless, here is what one of those members -- Sen. Russ Feingold -- said during his remarks on the Senate floor regarding the new FISA bill, as highlighted by Howie Klein. In a minimally rational world, these revelations from Sen. Feingold would be major, major news:

I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation. I am also familiar with the collection activities that have been conducted under the Protect America Act and will continue under this bill. I invite any of my colleagues who wish to know more about those activities to come speak to me in a classified setting. Publicly, all I can say is that I have serious concerns about how those activities may have impacted the civil liberties of Americans. If we grant these new powers to the government and the effects become known to the American people, we will realize what a mistake it was, of that I am sure.

Those who claim that there were no abuses of these spying powers for all those years when the Bush administration spied in secret are making assertions without having any basis whatsoever. And then there is the entire, unresolved matter of what James Comey was describing when he said that the spying activities in which the Bush administration was engaged for years were so patently illegal and unconscionable that even he, John Ashcroft and FBI Director Robert Mueller -- right-wing ideologues all who approved of the lawless "Terrorist Surveillance Program" -- all threatened to resign en masse if those still-unknown activities continued.

Think about what it says about our country -- about the notion of an open, transparent government -- that all of this remains secret and, thanks to this new FISA law, will remain so. We have no idea what our Government has been doing in terms of how it spies on and keeps records of our communications, even with regard to programs that their own top officials said were patently illegal and which allegedly stopped years ago. We just happily remain in the dark about all of it, telling ourselves that there's "no evidence" of abuse and therefore no reason to be particularly concerned about it.

Worse, both parties act in unison not only to conceal all of this from ever becoming disclosed to American citizens, but also to protect the lawbreakers without even knowing what they did. Meanwhile, those for whom allegiance to a new Leader is their overriding mission suddenly pop up (now that it's not just Bush endorsing all of this but their new Leader as well) in order glibly to dismiss all of these concerns -- about unconstitutional and illegal spying, both past and future, and the destruction of the rule of law -- as Leftist "hysteria". What's most amazing -- and most disturbing -- are the levels of secrecy, lawlessness, and passivity which so many Americans (represented at the link by an Obama-cheering Stanford Professor) have been trained to accept.

UPDATE II: An Obama-supporting reader emails with a good point:

I laud you for your work on exposing the FISA compromise for what it is. What I have a problem with is what I consider a bit of a straw man argument you make with respect to Obama supporters defending him. In your otherwise excellent piece today, you refer only generally to emails you received (and in other posts to random dailykos diaries), but never nail down who these mindless defenders are. Yet you go on and on with examples of those who have criticized Obama. The examples you do cite of those who defend him are either craven (Lanny Davis), mindless members of the mainstream media, members of the right, or all of the above--not lucid, able, much-read, democratic long-time supporters of Obama (I guess Olbermann is maybe an exception, but I think he just made a mistake on this one). I actually think the vocal Obama supporters who have been writing about this election from the start have mainly been critical; it's been great to see, in my view, in a sad way. I'm sure there are a lot of mindless Obama supporters out there, but I think your recent posts have greatly exaggerrated them--the story is that he is being taken to task by the vast majority of his progressive supporters. Will there be consequences? Either way, I feel we are doomed: if there are consequences, he perhaps loses the election as Tribe worries; if there are no consequences, it will be a LONG time before the 4th amendment is restored.

As I responded by email, I've specifically identified numerous such Obama supporters guilty of spouting incoherent and inconsistent rationalizations to justify what Obama did (including Keith Olbermann, Jonathan Alter, Nancy Soderberg and, today, Larry Lessig), but the reader nonetheless makes an important point: the type of mindless Obama devotion that I (and others) have criticized is present among a small (though quite vocal) minority of Obama supporters. The vast majority of those who want Obama to win (which, incidentally, still includes me) are perfectly reasonable voters who are more than capable of criticizing Obama when he deserves it.

Indeed, as the reader points out, even many of Obama's most vocal supporters have been very critical of Obama with regard to his FISA vote and other recent behaviors, as well as with regard to the extremely disturbing tendency among some of his supporters to mimic whatever he says and change the way they think in order to justify everything he does. But it's worth underscoring that that's a minority among Obama supporters, and the more interesting and consequential story very well might be the groundswell of support for core constitutional liberties and the rule of law among hard-core Obama supporters even as their candidates votes to enact a bill which eviscerates those values.

UPDATE III: The aforementioned Kevin Drum has an excellent analysis here of several specific ways that the new FISA law can, and likely will, be easily abused.

UPDATE IV: Digby today has one of the best assessments yet of what the Obama campaign has been doing over the last month or so. Her last paragraph, in particular, contains the most vital insight of all. That is, more or less, the question to which most of what I've been doing over the past 6-8 weeks has been devoted.

By Glenn Greenwald

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